JUDGMENT

1. The facts giving rise to these appeals are that Messrs. L.D.W. Hearsey and G.E.C. Hearsey executed a mortgage deed on 26th April 1915, for a principal sum of Rs. 20,000 carrying interest of annas ten per cent per mensem in respect of three villages in favour of the respondent (vide Ex. A-3 in Appeal No. 83 of 1937). The same two persons, on 26th May 1921, mortgaged 16 villages, including the three villages mortgaged under the mortgage deed dated 26th April 1915, for a sum of Rs. 1,00,000 in favour of Rani Rajeshwari Devi, the senior Rani of Thakur Jai Indra Bahadur Singh, the Taluqdar of Mahewa, leaving out of the consideration a sum of Rs. 20,000 for payment to 'the respondent, (vide Ex. A-4 in Appeal No. 83 of 1937). The amount of Rs. 20,000 made dehanid and due on the mortgage of, 26thApril 1915 was not paid by Rani Rajesh wari Devi. The said Rani together with her husband, Thakur Jai Indra Bahadur Singh, executed on 28th July 1923, a deed of mortgage for a sum of Rs. 30,000 in favour of the respondent. The principal amount of Rs. 20,000 and interest thereon up to that date amounting to Rs. 1884-14-9 was set off towards the mortgage consideration and a sum of Rs. 8115-1-3 was received in cash (vide Ex. 1). The estates of Rani Rajeshwari Devi and Thakur Jai Indra Bahadur Singh are now under the superintendence of the Court of Wards. The Deputy Commissioner of Kheri, Manager of the Court of Wards, representing the estates of Thakur Jai Indra Bahadur Singh and Rani Rajeshwari Devi, made two separate applications on behalf of each of them under Section 4, U.P. Encumbered Estates Act, praying that the provisions of that Act be applied to them. The applications were forwarded to the Special Judge, First Grade, Kheri, and necessary notices under Section 9 of the Act were published in the Gazette.

2. Thereupon the respondent to the appeals, who held the mortgage in his favour dated 28th July 1923, filed a written statement of his claim under Section 9(1), U.P. Encumbered Estates Act, in each case claiming a total amount of Rs. 63,958 on the basis of the said mortgage. The claims in the two cases were decided together. The debtors in their written statements contested the claim on the ground that the principal amount for the purposes of Section 14, U.P. Encumbered Estates Act, could not exceed Rs. 28,115-1-3. They further alleged that the claimant had agreed to accept Rupees 56,230-2-6 in full satisfaction of his claim, and no more than that amount could be allowed to him. The learned Special Judge decreed the claim for Rs. 60,000, i.e. double of Rs. 30,000, the amount for which Ex, 1 was executed with proportionate costs and interest at 3 1/4 per cent, per annum from the date of the application till the date of the payment. The learned Special Judge incorporated in the decree a condition to the effect that the claim will be enforced either against Thakur Jai Indra Bahadur Singh or against Rani Rajeshwari Devi or against both, but in all to the extent of the amount decreed only. The debtors have filed the two appeals mentioned above, one from the decree in one case and the other from the decree in the other case. These appeals have been heard together.

3. The points that have been urged in these appeals are that the principal amount for the purposes of Section 14, U.P. Encumbered Estates Act, should have been taken as Rs. 28,115-1-3, i.e. Rs. 20,000 actually advanced as principal by the deed dated 26th July 1915, and Rs. 8115-1-3 representing the cash advanced at the time of the execution of Ex. 1, and that in the circum stances of the case no costs should have been allowed to the claimant. The learned Special Judge has treated the entire consideration of the mortgage deed (Ex. 1) as principal money for the purposes of Section 14, U.P. Encumbered Estates Act, on the ground that the applicants are not the re presentatives of the mortgagors of the deed dated 26th April 1915, executed by Messrs. L.D.W. Hearsey and G.E.C. Hea